Introduction
The agenda that we are dealing with, happens to be a question, which further raises a lot of questions. To begin with, let’s take a look at the gender parity index that covers a lot of aspects and acts as a mirror to the society of that particular nation. India ranks at 112th when it comes to gender parity and it will take us 99.5 years to cover the same if we operate in the same way we do. Further, it will take us 95 years to cover political representation inequality and another 257, to cover economic disparity.
All of these numbers depict the innate functioning of Indian society and approves of the regressive thinking towards women. These unfortunate figures scream that we need to cater to the women of our society and consider their problems. Marital rape acts as a major drawback here in this case. Currently, the Indian Penal Code (IPC) exempts a man from the charge of rape if the victim happens to be his wife. The said clause, which appears in the IPC as Exception 2 to Section 375(which defines the offense of rape) states that “sexual intercourse or sexual acts by a man with hiswife, the wife not being under fifteen years of age, is not rape.”[1] Exception 2 to Section 375 of IPC finds roots in the archaic English notion that a wife is but a subservient chattel of her husband. This common-law marital rape exemption came in the seventeenth century by the Jurist, Matthew Hale, and is commonly known as ‘Hales’s Principle’.[2] This exception lays down that a husband could not be held guilty of raping his wife on the ground that the wife gives up her body to her husband at the time of marriage. However, this notion has since been given up in the United Kingdom itself in the R v. R case (1991), now marriage is understood as an equal partnership between man and wife. But the same principle stands still in Indian Law and is highly putative.The concept has already been detached and was held unlawful in the UK and it should not hold any value in the status quo.
The exception in itself is so inane and contradictory,as the legal marriage age in India happens to be 18, under which, any sexual intercourse with the girl is categorized as rape. So, does the above-mentioned exception gives the license to rape under the sacred institution of marriage? The entire virile establishment hinges on the belief that women (if not juvenile) latched in the marriage are unassertive, sexual slaves.
This is one question that we shall deal in our essay along with the tracing back of this ridiculous law, that itself jeopardizes and shatters the concept of marriage as well as the dignity of women. Before we delve deep into the roots and reasons, there is this the widely-quoted line from Justice Leila Seth’s 1981 Delhi High Court judgment, ShakuntlaKumari v. Om Prakash Ghai[3]“a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage.”[4]
Indian society and lawmakers
The misogynistic view holds that women already have methods for moving toward the courts and it isn’t important to accuse a man of assault. The patriarchal society is so strong in India that it is coming in between the formation of many laws. For example, if we consider the Women Reservation Bill in Parliament. This bill has been pending since 2008. Why is this bill not passed? In 2019, there were only 13.44 % women in parliament which makes it hard for any women-centric bill to be passed in parliament. The thought of not instituting law against marital rape disregards the truth that the job of the state in a democratic, capitalistic and globalized society is to ensure the privileges of women and citizens rather than protecting the marital establishment.
Marriage and implied consent
In India, the sacrament of marriage is so deep-rooted that it disregards the idea of consent. It is believed that there is implied consent for sexual intercourse after marriage but patriarchal society often ignores the fact that this particular tie of marriage might be against the will of women. As we know that around 90% of marriage in India is arranged marriage, so there is a high probability that there is no consent by the woman rather there is just the consent of two families.
Legal Issues and International Aspect
Living in the second decade of the century, we still come to find out that someIndian laws and its perception is downright sordid. Law and society are closely related and all the laws, on paper, are said to be ‘for’ the society but what we are dealing with, does not seem to fulfill those criteria.
Around 100 nations have criminalized marital rape and India is not on the list. We still look at it as a civil wrong, putting a stamp on the statement that wives are treated as husband’s property. The Court in the case of Independent thought v. Union of India[5] correctly observed that Exception 2 to Section 375 is arbitrary and violative of child rights and Articles 14, 15 and 21 of the Constitution as well as Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Yet, we have seen no significant changes but only pending bills and recommendations. The international law condemns such an act and has separate provisions regarding the same. Article 2(B) of CEDAW and Article 9 of ICCPR mandates the state to adopt all legislation necessary to eliminate all forms of discrimination against women. The European Court of Human Rights in thecase of SW v. the UK[6] while upholding the conviction for marital rape, stated: “The abandonment of the unacceptable idea of a husband being immune against prosecution for the rape of his wife conformed not only with a civilized concept of marriage but also, and above all, with thefundamental objectives of the Convention, the very essence of which is respect for human dignityand human freedom”.[7] Marital rape is a crime in all the 50 states of the United States.
Even the Supreme Court of Nepal has struck down the exception of marital rape through the case FWLD v. HMG (2002). The Supreme Court in Jit Kumari v. Government of Nepal (2006), ruled that where the offense is the same, there is no rationality in differentiating between marital and non-marital rape.[8]Comparatively, Nepal is the closest to us, in geographical and cultural aspect and the Supreme Court there has criminalised marital rape.
Privacy thread
The initial part of the essay had a few crucial rankings, each based on different criteria. Now that we see how drastically regressive our laws are, when compared to the other nations, it justifies the fact as to why we rank so low in gender parity. The term ‘privacy’ has been widely misinterpreted by the ones who claim that marital rape laws will infringe on the privacy and sanctity of marriage. It is vague to let the wife’s dignity be shattered in the name of protecting the privacy of marriage.Justice DY Chandrachud writes about privacy being the “constitutional core of human dignity” and distinguishes a type of privacy as “decisional privacy reflected by an ability to make intimatedecisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”[9]
The ambit of privacy is precisely defined here and marital rape is not something out of the box.Undeniably supporting the fact that what happens within four closed walls should not bother anybody else ‘but’ a criminal wrongdoing bothers society as a whole and this is how it is being differentiated from civil wrongs. Cases like Triple Talaq and the landmark decision in Joseph Shine vUnion of India[10] in 2018, in which, the Indian Supreme Court unanimously invalidated Section 497 of the Indian Penal Code, 1860, which criminalized a man having consensual sex with a married woman. The above-mentioned cases were as private as it gets in terms of marital affairs but still, solid judgments were passed in both cases. Hence, the concept of privacy and the argument that follows it is flawed. It provides a shield to rape that further promotes toxic patriarchy.
Conclusion
The Puttaswamy judgment made no distinctions between the rights of married and unmarried women and nothing in Indian jurisprudence suggests that women forego their fundamental rights after marriage. The marital rape exception is an archaic and misogynistic stipulation that has noplace in modern India.[11]
“My refusal meant nothing to him,”said Rita when Community Correspondent Reena Ramteke, asked her how she tried to oppose her husband. Rita added that her husband would beat her up and threaten to kill her.[12]
The lady survived marital rape for 10 years. She had no other option but to take care of her children who would see their mother, being forced into sex every night before they would go to bed. She somehow gathered the courage to go to the police station, where the police told him that they are not in the position to infringe into a marital affair and these 10 years of brutality can only be justified as domestic violence.
This happens to be just one out of a hundred thousand stories of mental and physical torture. Torture by the person who was supposed to protect and love his wife but the lack of strong laws and over-powered patriarchy, made him merely treat her like an object to use and exploit for life.
We ought to have faith in the judiciary, the women, and the lawyers that they would advise them right.
[1]Indian Penal Code,1860, § 375
[2] Regina v. Clarence [1886-1890] All E.R. 133, 152, 22 Q.B.D. 23, 57 (1889) (reversing a conviction for assault and infliction of grievous bodily harm by a husband on his wife for having sexual intercourse with her when he had venereal disease).
[3]ShakuntlaKumari v. Om Prakash Ghai, AIR 1983 DLT 64
[4]Saptrishi Mandal, What Do Judges in India Think About Marital Sex?Engage, (January3,2018), available at https://www.epw.in/engage/article/what-do-judges-india-think-about-marital-sex
[5] Independent Thought v. Union of India A.I.R. 2017 10 SCC 800 6.
[6] European Court of Human Rights,SW v. the UK [(1995)] 21 EHRR 363.
[7] Maithili ShaanKatari Libby, Marital Rape- It’s all about respect, Indian Legal (October 26, 2019), available at https://www.indialegallive.com/viewpoint/marital-rape-its-all-about-respect.
[8] Maithili ShaanKatari Libby, Marital Rape- It’s all about respect, Indian Legal (October 26, 2019), available at https://www.indialegallive.com/viewpoint/marital-rape-its-all-about-respect.
[9] Justice K.S. Puttuswamy (Retd.) v. Union of India, AIR 2017 SC 4161.
[10] Joseph Shine v. Union of India, AIR 2018, SC 4898.
[11]Nandini Sharma, explained: Why Excluding Marital Rape from Sexual Assault Keeps Modern India Oppressed, 3rd July 2019, available at https://www.youthkiawaaz.com.
[12]AlankritaAnand ,My Refusal Meant Nothing To Him: A Survivor Opens Up About 10 Years Of Marital Rape,24th August 2018,available at https://www.youthkiawaaz.com/2018/08/rape-by-any-other-name-would-still-be-rape/
By-
Vaibhav Chaturvedi (Lloyd Law College) &
Tanishka Jangid (Lloyd Law College)
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